Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-448

MAY TERM, 2014

Kenneth P. Felis } APPEALED FROM:

}

} Superior Court, Lamoille Unit,

 v. } Family Division

}

}

Vicki-Lee Felis } DOCKET NO. 9-1-07 Ledm

Trial Judge: Dennis R. Pearson

In the above-entitled cause, the Clerk will enter:

A final judgment in this divorce action was entered in December 2011. Husband 

appealed and this Court affirmed the majority of the order, but reversed and remanded the 

division of marital property. The trial court issued an order pursuant to the remand. Husband 

appeals the decision on remand, arguing that the trial court impermissibly expanded the limited 

scope of the remand and violated the law of the case. We affirm.

The underlying facts of the divorce are recited in the first appeal decision, and need not 

be recounted again in detail. See Felis v. Felis, 2013 VT 32, 193 Vt. 555. In brief, the parties 

had a long-term marriage. Wife was the primary caregiver for the parties’ children and did not 

work outside the home. Id. ¶ 3. Husband was a successful businessman with several small 

businesses. The divorce was contested, and the parties disputed, among other things, how to 

divide the marital estate, which was valued at approximately nine million dollars. Id. In its 

property division, the family court divided the assets between the parties, granting wife 

$5,539,450 of the estate and husband $4,158,647. One item included in the property division 

was a Merrill Lynch cash account. The court’s distribution indicated that wife should receive 

$1,000,000 and husband $441,068 from the account. In a footnote, the court indicated: “If the 

total cash amount(s) available from all accounts is something different than the amount relied on 

by the court in finalizing this decree (i.e. at least $1.69 million, the figure used in fn. 84 above), 

then the distribution required by this ¶ 9 shall be a pro rata amount as discussed above in fn. 86.” 

Footnote 86 related the same idea: “If the actual amount of remaining cash in all accounts is 

significantly less (or perhaps even marginally greater) than the numbers used by the court here, 

as of 7/1/11, then the distribution to each party should be on a pro rata basis, in the same 

percentage.” 

The court credited to husband two amounts totaling $250,000 as if they were marital 

property when in fact the money had been issued as an unsecured loan and paid to an 

administrative assistant. On appeal, this Court reversed, holding that funds could be returned as 

assets to the marital estate only if dissipation was proven by showing that the expenditures were 

intentionally wasted for purposes unrelated to the marriage. Id. ¶¶ 20-21. Because there were no 

findings to demonstrate these necessary facts, this Court remanded the property award. Id. ¶ 25.
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On remand, the trial court found that there was insufficient evidence for the court to make 

the necessary findings to support dissipation of assets. Therefore, the court modified its factual 

findings and deleted the $250,000 from husband’s side of the ledger. To “essentially maintain an 

equivalent overall allocation and distribution of the total marital assets,” the court added 

$125,000 to plaintiff’s portion of the Merrill Lynch account and reduced defendant’s portion by 

$125,000. The court made an additional change to its final order. The court acknowledged that 

there was a discrepancy in the final order between the award of sums certain from cash accounts 

and the footnotes that suggested there would be a pro rata distribution if at the time of 

distribution the funds were insufficient to make the specified payments to both parties. To 

alleviate any confusion, the court struck footnotes 86 and 91. Husband now appeals a second 

time.

On appeal, husband first argues that the trial court exceeded the narrow scope of this 

Court’s remand by modifying the divorce order in a manner unrelated to the $250,000. 

According to husband, the remand was to remedy the error of including the nonexistent $250,000 

asset in the marital estate and the court was without power to consider other property division 

issues. 

On remand, “the trial court is limited to the specific directions in the remand order as 

interpreted in light of the opinion.” Will v. Mill Condo. Owners’ Ass’n, 2006 VT 36, ¶ 9, 179 

Vt. 500. Here, this Court instructed that because the trial court “erred in determining the 

elements of the marital estate, and its value, and, as a result the property award, we must reverse 

and remand the property award.” Felis, 2013 VT 32, ¶ 25. Our mandate affirmed the judgment 

“with respect to parent-child contact, maintenance and attorney’s fees,” but stated that “[t]he 

judgment with respect to the division of marital property is affirmed in part, and reversed in part, 

and remanded for proceedings consistent with this opinion.” 

The trial court did not impermissibly act outside the scope of the remand. This Court

simply reversed and remanded the property award. The mandate and the text of the opinion did 

not limit the trial court to simply removing the $250,000, but allowed the trial court the 

opportunity to revisit the entire property award in light of any change. Given the broad 

discretion the trial court holds in fashioning an appropriate division of property, this is our usual 

practice. See Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 56, 193 Vt. 490 (recognizing 

that trial court’s error in property division usually results in remand of entire property division).

Husband also contends that the court’s decision to strike the footnotes referring to pro 

rata distribution violated the law of the case doctrine. The law of the case doctrine is a rule of 

practice that provides that once a court decides a particular rule of law, that decision governs the 

same issue in subsequent stages of the same case. Gardner v. Jefferys, 2005 VT 56, ¶ 14, 178 

Vt. 594 (mem.). There is, however, no law of the case absent a judicial decision establishing the 

particular rule of law. In re Chittenden Solid Waste Dist., 2007 VT 28, ¶ 29, 182 Vt. 38. Here, 

husband views as settled and final the division of the Merrill Lynch cash account, and therefore

claims the trial court’s decision deleting the footnotes altered the law of the case. The simple 

answer is that there was no judicial decision on the matter; the property division was not yet 

final. This Court found error in the trial court’s determination of what property should be 

included in the marital estate and remanded the property award. Therefore, the court was not 

barred by the law of the case from revising the property division.

Finally, husband argues that the trial court misconstrued and misapplied the holding of 

Meyncke v. Meyncke, 2013 VT 82, when it chose to keep the sums certain and delete the 
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footnotes requiring a pro rata distribution of the accounts. We need not reach this argument 

because the court’s decision to award property based on a sum certain rather than a pro rata share 

was entirely within the family court’s discretion in dividing property and not dependent on the 

holding of Meyncke. See Brinckerhoff v. Brinckerhoff, 2005 VT 75, ¶ 10, 179 Vt. 532 (mem.)

(noting family court has “broad discretion” to craft property award).

Affirmed.

BY THE COURT:

_______________________________________

Paul L. Reiber, Chief Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Amy M. Davenport, Superior Judge,

Specially Assigned